Address by the Deputy Minister of Justice and Constitutional Development,
the Hon JH Jeffery, MP, at the Budget Vote on the Office of the Chief Justice, National Assembly, 17 May 2017
Heads of Courts present and distinguished Members of the Judiciary
Ladies and Gentlemen
Let me too add my congratulations to our esteemed Chief Justice on his election as President of the Conference of Constitutional Jurisdictions of Africa. The CCJA promotes universal values and principles of law, democracy and human rights across constitutional jurisdictions within Africa.
These issues – law, democracy and human rights – are values central to a constitutional democracy such as ours.
Also central to a constitutional democracy is the doctrine of the separation of powers, a doctrine which aims to limit excess government power by dividing it among the various branches of government - the legislative, the executive and the judiciary - with various checks and balances to prevent any one branch from exercising too much power.
There have been numerous cases before our Constitutional Court involving the separation of powers – a doctrine mentioned as early as in the First Certification judgment.
Judge Phineas Mojapelo perhaps said it best when he wrote, in 2013:
“In a constitutional dispensation, the doctrine of separation ofpowers is not fixed or rigid.
The courts are duty bound to developa distinctively South African model of separation of powers, onethat fits the particular system of government provided for in theConstitution and that reflects a delicate balancing, informedboth by South Africa’s history and its new dispensation, betweenthe need, on the one hand, to control government by separatingpowers and enforcing checks and balances, and on the other,to avoid diffusing power so completely that the government isunable to take timely measures in the public interest.”
There has been a significant amount of discussion and debate as to what judicial overreach is and isn’t.
Some argue that the court is performing its duty as the custodian of the Constitution, whilst others will say that it’s judicial overreach, with the judiciary entering the domain of the executive.
Law experts themselves are divided in their opinions as to where to draw the line on judicial overreach.
Whichever way one argues it – and whether or not one agrees with the judgments or not - our courts have proved themselves to be independent.
A media report, published in April this year, reads:
“…this phenomenon of judicial overreach has become endemic only because the governing apparatus in this country … has proved itself to be manifestly incompetent … over many years. This compelled the citizens to seek relief from the judiciary. In some cases, the checks-and-balances framework worked. In the long run, however, it motivated the judiciary to inevitably carve out territorial supremacy at the cost of the executive.”
Another recent media headline reads: “Judicial overreach should not be met with executive overreach.”
Now, Madame Speaker, one might very well think that these are South African media reports.
But they are not. The first is from a newspaper in India and the second one is from the Washington Examiner in the USA.
So the point really is this – the debate around judicial overreach is an international phenomenon.
It is something we find in developed countries and also in developing countries. It is not a uniquely South African question. It is not the first time that the issue of judicial overreach is raised and fiercely debated, and nor will it be the last.
Nor it is a clear cut issue, either way. As a developing constitutional democracy it is natural and normal that we will grapple with these issues – particularly because, as Judge Mojapelo wrote, the doctrine is not fixed or rigid.
There are no easy answers, yet there are some points that we need to consider going forward.
Firstly, judges must bear mind that they are invested with great political power; they are permitted to override measures enacted by the legislature and the executive, measures that the legislature and executive regard as consonant with the Constitution.
Secondly, judicial discretion often competes with legislative discretion and executive discretion. It is thus obvious that tensions will occur.
Thirdly, the Constitutional Court, to its credit, has endorsed the principle of self-restraint on a number of occasions.
Fourthly, at the same time, government has accepts and complies with the court’s judgments, particularly in respect of socio-economic rights, which is the area in which judicial activism mostly takes place. And we can cite many example of this: the TAC case on the provision of anti retrovirals; the Fourie case on same-sex marriages; the case on the withdrawal from the ICC and the Khosa case when Government was ordered to make social grants available to foreign nationals.
As President Zuma said at the United Nations: “Perhaps nothing reflects adherence to the rule of law like the judicial settlements of disputes.”
We may not always agree with the outcome of each and every case – just like every party who has ever lost a court case, or had an order not in its favour.
We may not always agree, but it cannot be said that the ANC-government has undermined the courts or undermined the rule of law.
Transformation of the judiciary is not, for us, a numbers game. It is a matter of vital importance to the legitimacy of our constitutional order. Transformation is linked to independence, as former Chief Justice Chaskalson pointed out when opening the 2003 National Judges’ Symposium, he said -
“[t]he impartiality of the judiciary is more likely to be respected by the public if it is seen to be drawn from all sectors of our community than will be the case if it is drawn from one race and one gender…”
The issue of the transformation of the judiciary is also often an emotive one, and one which has been at the heart of ANC policy for decades. And yes, we believe that aspirant judges must be progressive.
At its 2002 National Conference in Stellenbosch, the ANC resolved to expedite the transformation of the judiciary, to create a more representative, competent, sensitive, humane and responsive judiciary.
This was echoed in 2013 Mangaung Conference Resolutions which state that “there should be holistic criteria for eligibility to judicial appointment which include amongst others social activism.”
A transformed bench would be the result of a transformed legal profession.
Yet we know that briefing patterns and the allocation of types of legal work to, in particular Black and female counsel, remain problematic.
It is thus encouraging that the judiciary itself is doing its bit to ensure transformation in the allocation of work, with Gauteng High Court Judge President Dunstan Mlambo recently directing court staff to record the race and gender of every advocate appearing in the motion court in the High Court in Pretoria.
By collecting the data on briefing patterns we will now be able to determine which counsel dominate different areas of litigation. This then becomes useful to assist transformation in the legal profession.
Details of the briefs given by the State Attorney are now available on the Department of Justice’s website.
The recent Judicial Services Commission interviews have raised issues of concern and, in particular, laid bare existing racial and seniority divisions within the Supreme Court of Appeal. As one candidate candidly remarked: “… white judges sit at one end of the table [in the SCA tearoom], black judges on the other…”
Four of the candidates were from the SCA, hence the focus was very much on the SCA. But the real question would be, what about other courts? Is it just the SCA? Or are there other courts where these divisions are also apparent? And if so, what is the judiciary, as a whole doing, to address it?
Another area of some concern is the result of the Victims of Crime Survey 2015/16. This survey is a countrywide household-based survey which, amongst others, focuses on people’s views regarding access to, and effectiveness of, the criminal justice system.
It is a matter of concern that the survey showed declining trends in levels of satisfaction with the courts.
The findings show a decline in the percentage of households who are satisfied with the way courts are dealing with perpetrators of crime in all provinces, except in Limpopo. The highest levels of satisfaction with the courts was observed in Limpopo in 2015/16 (73%). The Western Cape displayed the lowest levels of satisfaction with the courts (32%).
In this regard, it would be important to engage the judiciary on measures that we – the Department and the judiciary together, along with other role-players – could implement to raise confidence and trust amongst members of the public in our courts.
It is also something that the National Efficiency Enhancement Committee and the provincial efficiency enhancement committees, which were established by the Chief Justice, could investigate further.
I want to stress the importance of our continuing engagement with the judiciary, and especially the Chief Magistrates’ Forum and the Regional Court President Forum, so that we improve access to justice and address any blockages or shortcoming in relation to the efficiency of our courts.
The OCJ will also, through the South African Judicial Education Institute, continue to provide support for judicial training and education of judicial officers.
It is envisaged that this would enhance service delivery and contribute towards the transformation of the judiciary, a constitutional imperative which we are all committed to achieve.
SAJEI has also for the current financial year scheduled over 90 courses to the magistracy. In this regard, we would like to extend our appreciation to all senior judicial officers who are assisting SAJEI with the training programmes.
Magistrates’ Courts continue to be the first port of call for access to justice for most people - with 740 court houses countrywide, of which 154 are periodical courts and 180 are branch courts.
For a court to render a service it must be supported by officials and other role players who are committed to serve the public and the cause of justice – in particular the needs of the poor and most vulnerable.
The budget vote also presents an opportunity for us to report back on progress made since last year’s budget vote debates.
With regards to the current governance arrangements in the lower courts, a joint Task Team made up of magistrates and officials have considered draft regulations on a number of issues. The Regulations were submitted to the Magistrates Commission for consideration and we are awaiting their inputs.
Members would recall that we also committed the Department to develop a draft Lower Courts Bill which is intended to rationalise and transform the legislative framework of the lower courts in line with the Constitution, by overhauling the Magistrates Courts Act of 1944 and transforming the lower courts in line with the Superior Courts Act of 2013.
The draft framework on the Bill was discussed with representatives from the magistracy in January this year, and we have since also received their comments.
The further work of the Task Team and the drafting of the Lower Courts Bill was unfortunately delayed due to unforeseen human resources and budget constraints, but we are now, once again, in a position to take the process forward.
During the past financial year the Minister appointed 25 Regional Magistrates and 48 Senior Magistrates to vacant posts and the Magistrates Commission will soon commence with interviews for a further 214 posts of magistrate.
Our Department will continue to assist the OCJ as part of its constitutional mandate to ensure the independence, impartiality, dignity, accessibility and effectiveness of our courts.
One of the new Sustainable Development Goals calls upon all countries to promote the rule of law and to ensure equal access to justice for all.
It is a goal we are unrelentingly committed to.
I thank you.